Filed 2/7/22 P. v. Elshire CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

LAURA JOYCE ELSHIRE,

Defendant and Appellant.

 D077968

 (Super. Ct. No. SCD248774)

APPEAL from an order of the Superior Court of San Diego County, 

Eugenia A. Eyherabide, Judge. Reversed and remanded for further 

proceedings.

Christopher A. Nalls, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Robin H. 

Urbanski and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff 

and Respondent.
2

I.

INTRODUCTION

Defendant Laura Elshire appeals the trial court’s denial of her motion 

for recall of sentence and resentencing that she filed after the Secretary of 

the California Department of Corrections and Rehabilitation sent a letter to 

the court recommending that Elshire’s sentence be recalled and that she be 

resentenced. (See former Pen. Code,1 § 1170, subd. (d)(1).)

In her opening brief on appeal, Elshire contended that the trial court 

failed to properly exercise its discretion when it denied her request to recall 

her sentence and that due process required that the court provide her an 

opportunity to be heard on that request. After briefing on appeal was 

completed, the Legislature passed, and the Governor signed into law, 

Assembly Bill Number 1540, which significantly alters the recall and 

resentencing provisions formerly set forth in section 1170, subdivision (d). 

The new provisions, which became effective January 1, 2022, weigh heavily 

in favor of recalling and resentencing defendants. (See Stats. 2021, ch. 719,

§§ 1–7.)

After the Governor signed Assembly Bill Number 1540, Elshire filed a 

supplemental brief requesting reversal and remand in light of the new 

legislation. The People responded, agreeing that the best course of action in 

light of the recent changes in the law would be for this court to reverse the 

trial court’s order and remand the matter to the trial court to allow that 

court to reconsider Elshire’s motion for recall and resentencing, applying 

the new recall and resentencing provisions. We agree with the parties that 

reversal and remand is appropriate.

1 Further statutory references are to the Penal Code unless otherwise 

indicated.
3

II.

BACKGROUND

Elshire was charged with robbery (§ 211) based on her participation, 

with two other individuals, in the robbery of a Wells Fargo Bank in La Jolla.2 

Elshire was also charged with possession of a deadly weapon while in a penal 

institution (§ 4502, subd. (a)) after a Ziploc bag containing two razor blades 

was found on her person while she was in custody at the Las Colinas 

Detention Facility.3

Elshire pled guilty to both counts and admitted all prior allegations.

At sentencing, the trial court struck one of the strike priors and found 

that both of the prior serious felony convictions stemmed from the same 

conduct, such that only a single five-year enhancement was appropriate. The 

court sentenced Elshire to a determinate term of 19 years in prison, 

comprised of a term of 10 years for the robbery conviction, a consecutive 

2 years for the weapon possession conviction, a consecutive 5 years for one of 

the prior serious felony allegations, and a consecutive 2 years for the two 

prison prior allegations.

On September 12, 2019, the Secretary of the California Department of 

Corrections and Rehabilitation (CDCR) sent a letter to Judge Leo Valentine, 

Jr., stating that the “purpose” of the letter was “to provide the court with 

authority to resentence . . . Elshire pursuant to Penal Code section 1170, 

subdivision (d).” The Secretary’s letter stated:

2 Because the underlying facts of Elshire’s case are not relevant to this 

appeal, we provide only a brief summary.

3 The amended complaint also alleged that Elshire had two prison priors 

(§ 667.5, subd. (b)), two serious felony priors (§ 667, subd. (a)), and two strike 

priors (§§ 667, subds. (b)–(i), 1170.12).
4

“In light of the court’s newfound authority to not impose a 

consecutive enhancement pursuant to section 667, 

subdivision (a)(1) (authority which did not exist at the time 

of Elshire’s sentencing) I recommend that inmate Elshire’s 

sentence be recalled and that she be resentenced in 

accordance with section 1170, subdivision (d).”

The letter was accompanied by documentation, which included 

Elshire’s programming history and a Rules Violation Report showing only 

two minor rule violations during her time in custody.

On October 1, 2019, Judge Michael T. Smyth filed a letter in Elshire’s 

case stating, “The Court has read, reviewed and considered correspondence 

from the Department of Corrections and Rehabilitation. The Court will not 

take any action on this matter.”

On June 26, 2020, Elshire filed a formal motion, seeking recall of her 

sentence and resentencing under section 1170, subdivision (d)(1); specifically, 

Elshire requested that the court strike the 5-year enhancement under section 

667, subdivision (a)(1), and the two enhancements under former section 

667.5, subdivision (b). Elshire argued that she had demonstrated a

“diminished risk for future violence” through her “minimal disciplinary 

record, record of rehabilitation during her term of imprisonment, and amount 

of time already served.” The trial court denied Elshire’s motion that same 

day.

On October 13, 2020, Elshire filed a notice of appeal.4 In briefing on 

appeal, Elshire argued that the trial court abused its discretion by refusing to 

recall Elshire’s sentence despite the Secretary’s recommendation.

While Elshire’s appeal from the trial court’s denial of her motion was 

pending, and after full briefing was completed, the Governor signed Assembly 

4 On October 9, we granted Elshire’s application to file a late notice of 

appeal.
5

Bill Number 1540, effective January 1, 2022, which substantially alters the 

recall and resentencing process and moves the resentencing and recall 

provisions of section 1170, subdivision (d)(1) to new section 1170.03 (Stats. 

2021, ch. 719, §§ 1–7).

Elshire sought leave to file a supplemental brief addressing these 

changes to the recall and resentencing process, arguing that because her 

appeal would not be final when these new provisions became effective, the 

new provisions should apply to her request for recall and resentencing. We 

granted Elshire’s request and permitted the People to file a supplemental 

response, which they have done.

III.

DISCUSSION

The parties both concede that Assembly Bill Number 1540

substantially alters the recall and resentencing process. The statute in effect 

at the time Elshire filed her motion and the trial court’s ruling provided as 

follows:

“When a defendant subject to this section or subdivision (b) 

of Section 1168 has been sentenced to be imprisoned in the 

state prison or a county jail pursuant to subdivision (h) and 

has been committed to the custody of the secretary or the 

county correctional administrator, the court may, within 

120 days of the date of commitment on its own motion, or at 

any time upon the recommendation of the secretary or the 

Board of Parole Hearings in the case of state prison 

inmates, the county correctional administrator in the case 

of county jail inmates, or the district attorney of the county 

in which the defendant was sentenced, recall the sentence 

and commitment previously ordered and resentence the 

defendant in the same manner as if they had not previously 

been sentenced, provided the new sentence, if any, is no 

greater than the initial sentence. The court resentencing 

under this subdivision shall apply the sentencing rules of 

the Judicial Council so as to eliminate disparity of 
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sentences and to promote uniformity of sentencing. The 

court resentencing under this paragraph may reduce a 

defendant’s term of imprisonment and modify the 

judgment, including a judgment entered after a plea 

agreement, if it is in the interest of justice. The court may 

consider postconviction factors, including, but not limited 

to, the inmate’s disciplinary record and record of 

rehabilitation while incarcerated, evidence that reflects 

whether age, time served, and diminished physical 

condition, if any, have reduced the inmate’s risk for future 

violence, and evidence that reflects that circumstances 

have changed since the inmate’s original sentencing so that 

the inmate’s continued incarceration is no longer in the 

interest of justice. Credit shall be given for time served.” 

(Former § 1170, subd. (d)(1).)

As of January 1, 2022, however, the recall and resentencing provisions 

that were previously in section 1170, subdivision (d)(1) were significantly 

revised and moved to a new section, section 1170.03. (See Stats. 2021, 

ch. 719, §§ 1–7.) Under the new provisions, a court must “apply any changes 

in law that reduce sentences or provide for judicial discretion” when 

resentencing under the recall statute. (§ 1170.03, subd. (a)(2).) The revised 

statutory provisions also require that a court hold a hearing if it intends to 

deny resentencing or reject a stipulation by the parties, and the court must 

state its reasons on the record for granting or denying recall. (Id., subd. 

(a)(6), (8).) Further, where, as here, the Secretary of CDCR has 

recommended recall of the defendant’s sentence and resentencing, the new 

provisions require notice to the defendant and the appointment of counsel, 

and further require that the trial court apply a presumption in favor of recall

that can be overcome only by a finding that the inmate poses an 

unreasonable risk to public safety. (Id., subd. (b)(2).)

Assembly Bill Number 1540 substantially altered the recall and 

resentencing process. The People concede that, for reasons of judicial 
7

efficiency, remanding the matter to the trial court to permit that court to 

reconsider Elshire’s request for recall and resentencing under the provisions 

of the amended statute would be the most prudent course of action. As noted, 

the Secretary of CDCR has already made a recommendation for recall of 

Elshire’s sentence in this case; in addition, this appeal will not be decided 

before the amended statute becomes effective, and even if this matter were to 

become final, the Secretary could, and likely would, initiate a new 

recommendation for recall and resentencing under the amended version of 

the statute. We agree that remand is appropriate under these circumstances. 

We therefore reverse the trial court’s order and remand the matter to the 

trial court to permit the court to reconsider Elshire’s request for recall of her 

sentence and resentencing under the new recall and resentencing provisions 

provided for in section 1170.03.

IV.

DISPOSITION

The trial court’s order denying Elshire’s motion for recall and 

resentencing under prior section 1170, subdivision (d)(1) is reversed. The 

matter is remanded for the court to reconsider Elshire’s motion for recall and 

resentencing pursuant to the provisions of section 1170.03.

AARON, J.

WE CONCUR:

HALLER, Acting P. J.

DATO, J.